Kennedy: Would leaving parts of ObamaCare in place be more “extreme” than entire repeal? Update: “Plane wreck” for White House?

Ed MorrisseyPosted at 12:45 pm on March 28, 2012

So far there doesn’t appear to have been any fireworks — or more accurately, duds — at the Supreme Court today as there were yesterday. In part, that’s because the topics under review aren’t as explosive: severability and Medicaid expansion. That doesn’t mean that the day has been entirely uninteresting, either, as Philip Klein reports for the Washington Examiner:

Justices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama’s national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law. …

Deputy Solicitor General Edwin Kneedler, on behalf of the Obama administration, was arguing that only the ban on pre-existing conditions and cap on the cost of policies should be turned down if the mandate was gone. But interestingly, Justice Anthony Kennedy argued this could be seen as more “extreme” than simply striking down the whole law.

Antonin Scalia went back and forth on this, arguing from both perspectives. He commented that striking down the mandate didn’t necessarily make the rest of the law invalid, comparing it to the Cornhusker Kickback and stating that its removal wouldn’t mean that the rest of the bill couldn’t remain in force. Later, though, Klein reports that Scalia remarked that his “approach” would be that the overturning of the mandate would have to mean overturning the whole bill. What seems interesting from these exchanges was that the justices seem to have gotten past the notion of explicit severability and had taken a utilitarian look at whether the consequences of ending the individual mandate necessitated a broader rejection of the PPACA.

And it doesn’t appear that those concerns are limited to the conservative jurists, either:

A court-appointed attorney, Bartow Farr, made the case for preserving the rest of the law if the mandate is found unconstitutional. But he ran into tough questioning from the liberal justices, who pointed to Congressional findings warning about a possible “death spiral” for insurers if they were forced to cover anybody who applied for insurance without healthy people having to be brought into the market.

Oral arguments are a time for what-ifs, so it’s good to keep from predicting outcomes merely from the questions asked. However, the court seems open to two paths to reject severability — the explicit removal of it from the bill, and the practical consequences of overturning the mandate. That can’t be good news for the White House. It’s not as dramatic as yesterday’s events, but still very intriguing.

We’ll update this with more reports and spot analysis as they come in.

Update: Jeffrey Toobin says that the argument today shows that the individual mandate is “doomed,” and he downgrades the situation for the White House to “plane wreck” (via our Headlines):

CNN Senior Legal Analyst Jeff Toobin: “This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?”

Whitfield: “Oh, my goodness. Okay, so I have got about 20 seconds or so left. How might this impact arguments later on this afternoon, Jeff?”

Toobin: “Well, it’s hard to imagine how things could be going much worse for the Obama Administration, but now they’re going to be dealing with the Medicaid portion, and they may decide to get rid of that as well.”

The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.

“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.

Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.

Ace, however, advises caution in his own inimitable style:

One thing is that I don’t trust liberals as far as prognostication. They haughtily dismissed these arguments previously, deciding to not even bother reading or considering the arguments. It would be 8-1 or 7-2 to uphold. These stupid conservatives. Don’t they know they’re so extreme that the more educated versions of them, on the Supreme Court, laugh at their silly ideas?

But now that that cockiness has been rubbished, they’re overreacting the other way, assuming the whole law is gone. Their worlds are spinning, so their bearings are a little off.

That certainly seems to be the case with Toobin this week. Savage, on the other hand, has a more rational look at the arguments being made. We’ll see … probably in June.